November 1, 2007

It was the first-ever verdict against Westboro Baptist Church, a fundamentalist Christian group based in Topeka that has protested military funerals across the country with placards bearing shock-value messages such as "Thank God for dead soldiers."

They contend that the deaths are punishment for America's tolerance of homosexuality and of gays in the military.

These protests are insane — not only hateful but also incoherent. (The dead soldier wasn't gay.) The tort claim was expectation of privacy at the funeral and for intentionally inflicting emotional distress.

Fred W. Phelps Sr., Westboro's founder, vowed to appeal to the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

"It's going to be reversed in five minutes," he said. This case, he added, "will elevate me to something important," as it draws more publicity to his cause....

"This was in a public space," [lawprof Mark] Graber said "While the actions are reprehensible, the First Amendment protects a lot that's reprehensible."

140 comments:

First, the plaintiff must prove that the defendant acted intentionally or recklessly. For an intentional act to result in liability, the defendant must intend both to do the act and to produce emotional distress. For a reckless act to result in liability, a defendant must act in deliberate disregard of a high degree of probability that emotional distress will follow.

Second, the defendant’s conduct must be extreme and outrageous. The conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.

Third, the defendant’s actions must have been the proximate cause of plaintiff’s emotional distress.

Fourth, the emotional distress suffered by plaintiff must be so severe that no reasonable person could be expected to endure such distress. Defendant’s conduct must be sufficiently severe to cause genuine and substantial emotional distress or mental harm to the average person. This average person must be one similarly situated to the plaintiff. The plaintiff cannot recover for his/her emotional distress if that emotional distress would not have been experienced by an average person.

Well, Phelps certainly is offensive with his speech, right? Surely you don't condone speech that is so offensive? In a public place? Right?

The First Amendment doesn't protect ALL speech, Ann. Come on. You know that. Certainly the founding fathers didn't intend for people with universally unappealing views to be protected.

The First Amendment doesn't protect THEM ... it only protects US.

Can't you see that Ann? The jury in the Phelps trial certainly understood that clearly.

Now, if you'll excuse me, CAIR is on the telephone inquiring about my services in their lawsut to force women like you into a burka (you know ... because you're making an offensive "statement" with your choice of offensive clothing.)

I have never understood those who can't see the ugly beauty of free speech. So No, I'm not happy. I'm not happy with the legislature passing the law allowing the lawsuit in the first place. It seems very Soviet Union to me. The way (the American way) to counter offensive speech is through speech, not through legislation.

There may be more than one turn in the appellate road, but I'm betting that in the end the verdict will be upheld. Speaker's 1st Amendment rights don't include the right to seek out and target individual people in the pain and throes of private mourning for the sole purpose of venting their 1st Amendment spleen upon them. I can easily see the intentional infliction of emotional distress through invasion of privacy being deemed to be not protected speech. Easily. Speech isn't being suppressed or chilled here. Out-of-bounds tortious behavior is.

Frankly I am not sure that courts are the solution to this. Phelps is a coward. My father lives in a small town not three hours from the Phelps church. One of the kids from the town was killed in Iraq. They had his funeral there and the entire town of 1300 came out for it. I wasn't there but I am told it was pretty touching and amazing. But Phelps didn't show up even though it was a short drive from his church. The reason of course was that in a small town with 1300 people and one night marshal Phelps and his cult would have at least received a serious beating and very well might have gotten their heads blown off. I can guarantee you had that happened no one would have seen a thing.

Frankly, the better solution for this rather than a lawsuit is for someone to beat Phelps within an inch of his life every time he shows up at a funeral. I volunteer to offer a free criminal defense to anyone who does.

This isn't free speech. It's outrageous abuse. In another time, the guy would have every right to shoot these protesters for desecrating his son's funeral. Thus, in our less non-violent era, it's only fair that he should have the right to at least take all of their money.

That was my thought, too. Four sitting Justices have made clear that they believe that due process places limits on punitive awards (at least against corporations, and presumably there's no rational way to distinguish awards against corporations from awards against persons), and two have said that's nonsense (Scalia and Thomas), and thusfar, Ginsburg's gone along with the dissenters. See BMW v. Bush; Phillip Morris v. Williams. It isn't entirely clear from Phillip Morris where Roberts and Alito come out on this issue, but I would be genuinely surprised (if elated) if they didn't fall on Kennedy's side of the question rather than Scalia's.

All that being the case, the AP story I read says that the trial judge had advised the jury that the compensatory award they'd granted exceeded the net assets of the defendant before they retired to consider the punitive award. It couldn't happen to a nicer guy, but this case is never just about this case. To decide the case in accordance with neutral principles, "[the] instant case must be treated as an instance of a more inclusive class of cases, i.e. the case at hand is treated in a certain manner because it is held to be proper to treat cases of its type in a certain manner." Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 985, 987 (1978) (internal quotation marks omitted).

So: forget what we know and think about Fred Phelps. What are the facts of this case as it goes to appeal? A jury awarded punitive damages grossly in excess of the defendant's assets, even after being told that the relatively minimal compensatory award was in excess of the defendant's assets. If the Supreme Court does have a majority for limiting punitive damages (which, to be clear, I think is totally wrong, but be that as it may), wouldn't this case be the sort of thing that majority would be interested in? Limiting massive punitive awards when the compensatory award alone will bankrupt the defendant?

Other forms of protest weren't getting Fred enough attention, and that's when he started targeting soldiers' funerals.

Live by the sword, die by the sword. The Phelps clan has played the lawsuit game for a long time.

I'm not sure how much money they have gained from suing, but I've read that they file a lot of suits.

I have heard that -- at least in some cases -- a member of the Phelps team meets with police in advance. There's always an implicit threat that the Phelps clan will sue if the police don't provide adequate protection for their right to draw a crowd and agitate.

Well, of course, but all speech is not protected (Ex. defamation). Or, more correctly, you can say it, but there may be consequences if you damage others. I don't know about VA law, just used NJ as an example. I think the C of A is plausible.

I agree you could question the amount of damages. Certainly, there may be other appealable issues.

Wait, professor, what about the rights of the Snyder family? Can Freedom of Speech really grant immunity against other violations of rights, such as privacy? Seems to me that talking about how offensive Phelps' and his church's speech is misses the point; his act violated the Snyder family's rights.

The way (the American way) to counter offensive speech is through speech, not through legislation.

I'm curious as to what counter speech would allow you to grieve your husband/father/son at your own private funeral while these nuts are screaming vile things at you, drowning out your service and intimidating the people trying to show respect for your loved one? Surely that family could have just thought of something to say that would have made the whole spectacle beautiful for them.

I'm sorry, I don't see how the Constitution upholds a right to harass and intimidate grieving families. They have the right to spout their insane beliefs, sure. But why should they have the right to prevent others from carrying on in the way they see fit?

It was interesting that this case was tried in a federal court (Judge Bennett, D Md.), where one would have hoped that federal constitutional rights might have received more serious attention.

The damages question doesn't raise the constitutional (or federalism) issues present in some other recent SCOTUS cases. It would be sufficient for the 4th Circuit to reverse if it found that, on the facts, a plainly erroneous conclusion as to damages had been reached below. It's just a simple, non-constitutional issue under the normal "clearly erroneous" standard applicable to any factual finding on an appeal in the federal system.

Granted, I'm not up on my First Amendment jurisprudence, but this kind of speech might seem to fall under the exception for "fighting words." You can't follow a black person down the street calling him the n-word, or even harangue him with an unwelcome pseudo-reasoned white supremacist rant(at least I don't think you can). How do we distinguish these situations from racist KKK counter-demonstrations against civil rights events or pro-life protests outside of abortion clinics, which many people find offensive but most everyone recognizes as protected speech?

Some ways to make the distinction occur to me (and I think it's important to find a principled way to make such a distinction and that such a distinction can be made), but the more I think about it I realize I can't come up with a solution here after thinking about it for five minutes, and I'm sure there's been detailed analysis of the issue in court opinions and laws reviews that I'm not aware of. Factors that seem relevant: the ability of the person to whom the speech is directed to avoid the speech, whether the person to whom the speech is directed is doing or saying something that invites or opens the door for contrary speech, and whether the speech is constructive or destructive in its intent and nature. (That last factor seems the slippierest slopiest and most dubious of the three, but what I'm getting at is this: The black person walking down the street minding his own business presumably is in no position to act upon the implications or policy prescriptions of the white supremacist; the family mourning the dead soldier is in no position to do anything about homosexuality in America. Seems to me that in both of these situations the people who are the object of, or who are the occasion for, the speech have the right to demand that the speaker get out of their face, and that if the speaker fails to do so an actionable injury is committed.)

Richard Dolan said..."[T]his case was tried in a federal court ... where one would have hoped that federal constitutional rights might have received more serious attention."

You think that state courts don't and/or can't give federal rights sufficiently serious consideration? That's an interesting proposition to advance in this place, given the name that appears in the masthead of this blog and the work it's been connected with.

This was in a public space," [lawprof Mark] Graber said "While the actions are reprehensible, the First Amendment protects a lot that's reprehensible."Graber's right

Graber's wrong. Brenner and the other 1st Amendment absolutists are wrong. Speech can be abused in protest, and it can be abused in targeting specific people in a public place for verbal attack so extreme and outrageous - such that any reasonable person would believe the speech provoked others to violence and up to riot from the emotional distress inflicted.

It doesn't take much, Ann. Not in a public place. It isn't a matter of just switching the channel, choosing not to read or listen to such abuse.Especially a funeral - what is your alternative but to sit and take people screaming your family membered deserved to die, they hope he suffered? Stop the services, put the coffin back in the hearse and try again on a better day?

The Phelps witches happen to be Bar member scum lawyers, as well as just scum, so they have finessed the cops from arresting them for creating a public disturbance with nobel legal sleaze about them just doing a "political protest".

If at one of those protests, when family is insane with grief, rage - if one of the soldiers family members had snapped, pulled a gun and killed all the Phelps witches off, I wouldn't convict for the life of me if I was on that jury.

**********************telecomedian - Ironic that the dead soldier took an oath protecting Phelps' ability to make such ridiculous claims.

That's a pile of crap. The only way you get people in the military to risk their lives is if you have people that believe that what they do is to defend the nation, their buddies in the field, and their beloved family at home from harm.

Military sacrifices for Security, without which all things in America would be impossible..with various "Rights" only a part of that mix - which is the Constitution and a ton of things so obvious the Constitution is silent about it. All the culture, norms, institutions outside the Constitution.Few, if any, fight for the "rights" to 25 more years of affirmative action, condoms, abortion on demand, birthright citizenship for illegals, the Electoral College, or the right of Federal Judges to lifetime appointments....the military does the Security part and lets others fight and quibble about "Rights".

Certainly none fight and risk dying to have some sick creeps torment & abuse widows and children as they wait to inter soldier's corpses, under the guise of "absolute" free speech.

No one fights for that, or the right of someone to have absolute right to shout "nigger" at blacks on the street as protest, or the absolute 2nd Amendment Right to defend your home with stockpiles of C-4, or fights for the right of any American to have the absolute freedom to join violent radical Islam to kill infidels so as to guarantee Paradise.

People lay down their lives to protect others - not for abstract, absolute "rights" that only are useful in abusing or endangering other Americans or damaging our domestic tranquility and ability for achieving justice.

NO doubt you have the fake Voltaire quote in mind that "I may not agree with what you say, but I will defend to my death your right to say it." Which was actually made up in 1905 by an idealistic female member of Philadephia's Literary Appreciation Society devoted to Voltaire's works.

Voltaire lived in an age when people lost their lives for saying stupid things to the wrong people in Europe...and there is obviously no record of him risking his life for the sake of any offensive idiot.

*********************I hope this lawsuit that ruins the Phelps coven stands. No "Right" can be absolute without trammeling on other Rights, norms outside the Constitution, the Other goals of the Preamble being kept in balance.

That's a good question, MadisonMan. I was thrown by that myself when I first read about this. But, a jury determined that such a violation did indeed occur, so I'm going under the assumption that whatever the criteria for privacy existed, it was met.

Ditto the "defamation" issue: I got the impression that the Westboro protestors were talking about homosexuality in general, not implying that the dead Marine himself was gay, but the decision did include text about the protest impugning the family's reputation as well (assuming the linked story is correct). So again, the jury decided that criteria on defaming someone's reputation was met.

Of course, someone could argue that the jury was mistaken in making those determinations, but it'd have to be someone with a better grasp of the specifics of the case than I do. I'm simply proceeding from the assumption that the threshold for those violations of family's rights were met, so my stance proceeds from that. And it's still a valid question in general: How should free speech rights apply when the excercising of such violates another person's rights? Does the "free speech" excercising person get immunity from charges of violation of privacy and character defamation?

As far as I'm concerned, this was decided quite a while ago when SOTUS allowed the American Nazis to march in Skokie, IL.

If they could do that, Phelps has a right to spew his venom. The only thing I saw that was a reasonable reaction to this were the laws passed limiting how close they could protest to a funeral. That has precedent in the decisions regarding abortion clinic protest laws.

Pogo: "If the courts do not see fit to remedy Phelps' vile behavior via a peaceable exchange of money, there will instead be violence."

It's my understanding that it has come to violence, from time to time, back when Phelps was peddling his wares at the funerals of AIDS patients.

To add insult to injury, it's my understanding that the Phelps clan funds its activities from the personal injury lawsuits against those who have done as you suggest, as well as similar nuisance suits against police departments that refuse to issue them permits, and such.

To the legal arguments: if the first amendment really should be read to permit drowning out the prayer and eulogies of a funeral with obscenities and hateful rhetoric, then the whole notion of reasonable time, place and manner restrictions on speech has already been tossed in the trash heap.

More concisely: if the law doesn't permit mourners any time or space to grieve their loved ones, then the law is an ...

Can't you just burn the Phelps people as witches? Bet the necessary enabling law is somewhere still on the statute books if you looked hard enough.

But first we have to use the British approved method to determine if they really are witches.

Sir Bedevere: There are ways of telling whether she is a witch.Peasant 1: Are there? Oh well, tell us.Sir Bedevere: Tell me. What do you do with witches?Peasant 1: Burn them.Sir Bedevere: And what do you burn, apart from witches?Peasant 1: More witches.Peasant 2: Wood.Sir Bedevere: Good. Now, why do witches burn?Peasant 3: ...because they're made of... wood?Sir Bedevere: Good. So how do you tell whether she is made of wood?Peasant 1: Build a bridge out of her.Sir Bedevere: But can you not also build bridges out of stone?Peasant 1: Oh yeah.Sir Bedevere: Does wood sink in water?Peasant 1: No, no, it floats!... It floats! Throw her into the pond!Sir Bedevere: No, no. What else floats in water?Peasant 1: Bread.Peasant 2: Apples.Peasant 3: Very small rocks.Peasant 1: Cider.Peasant 2: Gravy.Peasant 3: Cherries.Peasant 1: Mud.Peasant 2: Churches.Peasant 3: Lead! Lead!King Arthur: A Duck.Sir Bedevere: ...Exactly. So, logically...Peasant 1: If she weighed the same as a duck... she's made of wood.Sir Bedevere: And therefore...Peasant 2: ...A witch!

(Monty Python and The Search For The Holy Grail) As if you didn't know.

Liam said..."As far as I'm concerned, this was decided quite a while ago when SOTUS allowed the American Nazis to march in Skokie, IL."

I thought that in Skokie, the Supreme Court of the United States said only that on appeal from denial of stay pending appeal, in at least a first amendment case (and presumably other cases implicating fundamental rights), a state must provide a stay pending appeal or must provide highly expedited appellate review? That's a far cry from saying "Illinois must let Nazis march," and even if that was what the court said, I would think that a march is distinguishable from protesting a stationary event.

"As far as I'm concerned, this was decided quite a while ago when SOTUS allowed the American Nazis to march in Skokie, IL."

First thing I thought of. I can not see this standing upon appeal. I noticed that at least the Phelps have to pay for a lawyer this time. Hopefully that will be a hefty bill this time.

"These protests are insane — not only hateful but also incoherent. (The dead soldier wasn't gay.)"Insane, yes. Incoherent, yes. But not for that reason. Their logic is that the USA promotes homosexuality and as a soldier, he supports this. Therefor the protests. The incoherent part comes from their insistence that all of us are going to hell and this country will be destroyed NO MATTER WHAT, that is is too late to change this outcome, BUT they are protesting as a warning. That is truly a incoherent position. Read about the period of time when the Phelps kids were growing up under the bat-shit crazy Fred Phelps and you almost can feel sorry for them. There were a couple of kids that escaped and are living in California right now. They must be in their late 40's early 50's by now. Anyway, these people have been nuts for years. Fred used to choke the fax machines of the local newspapers, columnists he disagreed with, judges he didn't like, local prosecutors he disagreed with etc etc etc. The internet helps him be more efficient and going to military funerals give him access to media. If homosexuality didn't exist, he would find another reason to protest. He demands attention. He beat and brainwashed those people from birth to late teens and now they are as nuts as he was. I wonder at what happens behind closed doors with those little grandkids. It will be interesting to see what happens to that cult when Fred finally darkens the doors of Hell.

Simon: The question isn't, as you put it, whether "state courts don't and/or can't give federal rights sufficiently serious consideration." They can and do daily. But when a court gets an easy (at least, that's the way it strikes me) constitutional issue wrong like this, in a case quite likely to be of passionate local interest and likely generating quite a bit of local coverage, one suspects that something other than the merits may have colored the decision. State court judges are frequently elected; and, as elected officials, sometimes have their eye on public opinion in a way that federal judges don't. At least, that's the premise justifying life tenure for federal judges.

When I saw Ann's blog on this case, I assumed that this was an instance of that kind of thing -- a state trial court with one eye on the electorate. Turns out it was a federal judge who got the quiz wrong.

BTW, I don't follow your reference to the "masthead" and the "work"? I assume you're referring to Ann's academic work (I confess I'm not familiar with it). I'd be surprised if she disagreed with anything I had to say about this case.

jeff said..."[Skokie was the f]irst thing I thought of. I can not see this standing upon appeal."

As the late Chief Justice would say, what's your best case for that? I don't see how Skokie gets you anywhere, as noted in my 10:40 comment, above. What's the best case or cases you can cite for protesting at funerals (or other stationary ceremonies) constituting protected speech?

Simon: I'm afraid I have to differ with you about whether one can serve the idea and ideals of one's country rather than one's immediate surroundings.

I put my life and safety on the line (and that of my family) in the Middle East as a diplomat. When the guns were put to my head, they were put there individually. When bombs killed my friends and co-workers, they were directly killed. When my wife and child got caught in crossfires between government troops and protesters, it was their lives at stake.

We accepted these risks because we believed in America as America, including the Fred Phelps unfortunately. While particular policies of a particular administration might have been abhorrent, those policies came as the result of a democratic process that we fully supported and did, indeed, consider worth dying for.

"What's the best case or cases you can cite for protesting at funerals (or other stationary ceremonies) constituting protected speech?"

Personally, I am all for shoving them in a hole somewhere. Constitutionally, where do I get the right not to be upset? What are the ramifications to other speech that might be effected should this stand?

If the possibility of violence is now cause to remove someones freedom of speech,

Average people recognize the term fightin' words" and, incorrectly or not, assume that is not protected speech. They could be wrong.

But they are still fightin' words, regardless of court decisions. The primary purpose of government is an orderly society without which free speech is impossible.

Whether 'legal' or not, police, legislators, and judges need to be aware that these very personal services are a flashpoint when subject to abuse like Phelps. Absent a remedy to be left alone, there will be violence. Guaranteed, and in fact actually desired by Phelps.

In this case, I argue, someone's freedom of speech is going to be removed. This will occur legally, and peaceably, or it will be violent. I don't see a middle ground here. At some point he's going to protest at the wrong funeral, and that will be when people wonder why nothing was done to prevent the ensuing assault.

Pogo is right: "If the courts do not see fit to remedy Phelps' vile behavior via a peaceable exchange of money, there will instead be violence."

The Courts and Government have an agreement with the People that the People will not take justice into their own hands but will trust a government agency to administer justice in an orderly manner.

I don't see how public abuse of an ordinary family (I understand there *are* other rules for public persons vs. private persons) is protected. Isn't a verbal attack considered battery?

There is free speech and the right to say what one wants to say, and then there is deliberately abusing grieving people.

We end up with government constraints on our behavior when people have no internal, personal, or social constraints on their behavior. Because people will not stand for it. The outrage felt by average citizens WILL demand a response. If the State does not respond, then someone else WILL.

The sad part is, and it is sad - that state and federal authorities often go out of their way to put out of business or dare I say, harass organizations out of existence.

Witness the Church of the Creator and it's leader Matthew Hale. Though a reprensible and clearly obnoxious group, they never the less had a right to speak, but were essentially sued out of existence.

Since there is no recourse in criminal law (as far as I know) to regulate or control churches, the state of Illinois just sued the living daylights out of Matthew Hale and the church, seizing all of their assests.

It's rather disturbing that this sort of thing can occur. And yet at the time it was celebrated as a creative way to destroy the Church of the Creator.

I hate to be a broken record, but: What about the Snyder family's rights? A jury determined that those rights were violated. Again, does Free Speech grant immunity to those who excercise it to violate other people's rights?

"At one point Harley riders were revving their engines when the protesters showed up. Is that still going on?"

The Patriot Riders sit between the funeral and the protesters blocking the sight of the protesters, and also rev their engines so that it drowns out the protesters. The PR's are always invited guests of the family though.

I do see the legitimate concerns about free speech and censorship, but people have a right to expect peace and privacy at their son's funeral. Phelps can protest at parades, rallies, in parks, and even outside recruiting stations. But this is clearly harassment intended to inflict emotional damage. Laws against such behavior certainly can be abused, but it seems Phelps and his gang of slack-jawed troglodytes have done exactly what the law says you may not do.

You can question the amount of damages, but either the "emotional distress" verdict stands or the law itself has to be struck down.

Richard Dolan said that the constitutional issue in this case strikes him as an easy one and that the court got it wrong. Ann in her original post also implies that the court got it wrong. I hope that one or both of those presumably-knowledgable personages will make another appearance and explain: why Westboro Baptist shouting at the funeral of a dead soldier that they're glad he died and hoped he suffered is protected speech, while following a black person down the street and calling him the n-word is not; and why the Supreme Court's First Amendment precedents cannot be distinguished to recognize the common sense of most of the commenters here, that Westboro's speech is not protected.

Richard Dolan said..."I don't follow your reference to the 'masthead' and the 'work'? I assume you're referring to Ann's academic work (I confess I'm not familiar with it)."

Yeah. It seems to me that the role of state courts in enforcing federal rights can validly be called one of the themes of her work. If you're not familiar with it, I really do reccomend it - I added list of the highlights to WP a while back, and in due course, my understanding's that the collection's going to be available online outside of Lexis and the like fairly soon.

LawGiver said..."Do Brits have the equivalent of Miranda?"

I'm honestly not sure - but if there is, it wouldn't be as durable as Miranda because Miranda's authority is superior to any legislative attempts to limit or constrict it (as we learned in Dickerson in case it wasn't clear already), while in Britain, there's no authority superior to Parliament. I suppose there might be something in European Human Rights law, which is I think authoritative over contrary domestic authority, but again, I don't know anything that would prevent Parliament from detatching from those treaties if it were so inclined.

John Burgess said..."Simon: I'm afraid I have to differ with you about whether one can serve the idea and ideals of one's country rather than one's immediate surroundings."

I would have more sympathy for Phelps's claim to free speech were he not a con man. He tries to get people to attack him so that he can sue them in civil court. It's sort of nice to see him taking his own medicine.

The Phelps problem would be gone if men were still men and couldn't drag each other to court over minor fisticuffs.

And, here's the deal ... all you First Amendment absolutists who think you're going to shove the most vile, uncivilized and repugnant behavior down the throats of the American people, bullying us with your wielding of our Constitution?

You're also wrong.

The line is drawn, and it starts with Phelps and now it's going to grow to the rest of you.

You asked for it. See you in civil claims court, and bring your checkbook.

Either that or modify your abhorrent behavior and shut up while you're at it.

I would have more sympathy for Phelps's claim to free speech were he not a con man. He tries to get people to attack him so that he can sue them in civil court. It's sort of nice to see him taking his own medicine.

Agreed. I'm happy to see the Law finally addressing his repulsive behaivor. I'm surprised no one has taken matters into their own hands by now. If I heard he & his congregation were set on fire and then doused so they would suffer from 3d degree burns for the rest of their lives, I'd raise a toast to the perp who did it.

Its pathetic that States have allowed him to harrass grieving families for this long.

RSB:""The goofy jury threw a fit at God," Phelps said. What God is that? This Phelps is horrid. I'm sorry but he needs to be tarred and feathered."

Quite. And if I might invoke the Pauline Kael fallacy, I don't know any Christians who think otherwise.

Fen said..."Note to self: remember to locate Phelp's future funeral so you can desecrate it in the same spirit he has shown others."

That's no good. It isn't poetic justice if he's dead. Far better, relying on Kelo v. New London, to have the city where his church is located exercise eminent domain to seize his property and give it to a developer to build a strip joint and a gay nightclub.

Revenant said..."I don't see the difference between this lawsuit and Jerry Falwell's lawsuit against Larry Flynt"

What's the similarity? IIRC, in that case, Flynt ran a satirical piece and it was found to be non-libellous on the basis that the statements attributed to Falwell were so plainly absurd that no one could possibly think it was intended to be anything other than satire. I thought this case involved the question of damages for emotional distress from the exercise of an asserted speech right in a public forum.

You're kidding, right? You don't see a distinction between merely publishing material that some people find obscene, material that people are free to sell or purchase or ignore or decry as they see fit, and aggressively intruding upon a family's memorial for its dead son? How would you feel if you were sitting in a public park reading a book and some bum sits next to you and loudly expresses his opinion that you look like a fag so everyone else can hear. He doesn't physically threaten you. You move to another bench and he follows you over and loudly repeats the insult. You go to another public park and he follows you there. Finally you go home, where he doesn't have a First Amendment to go and speak. Your day has been ruined. But you haven't been harmed to nearly the extent that this family has. The injury to them will last a lot longer than a day, will probably last until the end of their lives.

John K: Here's why I think this is an easy case (just not for the plaintiff).

1. The speech at issue occurred in the public square. Whatever reasonable expectations of privacy may exist in the public square (it's hard to imagine what they might be), they don't justify the State in attempting to ban speech in the public square.

2. The speech at issue involved a statement of religious beliefs. The defendant's statement was that God is punishing America by killing its soldiers. He celebrates God's punishment and wishes for more of the same. The reason that God is punishing America, he says, is that America approves of sodomy.

4. Religious beliefs often strike non-believers as credulous madness or worse; the Bible has lots of speeches and prophetic passages that strike modern ears as decidedly un-PC; and that "sodomy" is this nut's hobbyhorse may remind some of a particular Biblical story where divine punishment of a more extreme quality was imposed. Be that as it may. The First Amendment clearly protects the expression of religious beliefs, whatever non-believers may think of them.

5. The speech at issue addressed matters of public concern in the public square. The defendant wants to discuss gay rights. He just thinks the better policy would be gay non-rights. You don't have to agree but the State of Maryland can't force him (or you) to shut up in addressing that issue, either directly (by a ban) or indirectly (by subjecting him to money damages).

6. The gov't can only regulate or restrict speech for a compelling reason, and then only if reasonable time-and-place rules are insufficient to serve the gov'tal interest at stake.

7. The speech at issue here (a) occurred in the public square, (b) involved a statement of religious belief, and (c) addressed matters of public concern, and thus the requirement for a showing of a compelling gov'tal interest before the speech may be restricted is particularly heavy.

8. The hurt feelings of listeners do not give rise to a compelling gov'tal interest sufficient to restrict speech, regardless of how widely shared or deeply felt.

9. Exceptions to the First Amendment's protection for speech in the public square involving a statement of religious belief, and addressing matters of public concern, are few and far between, and are always narrowly construed.

10. This case did not involve "fighting words" -- that's not a synonym for insulting or obnoxious language -- because there was no objective basis to conclude that the defendant's speech presented an immediate and imminent threat to peace or safety. Nor was there any basis to believe that any such concerns could not have been addressed by reasonable time-and-place limitations on the speech. (That the case involved an after-the-fact tort claim makes "fighting words" even less apposite.)

11. State court tort liability, when imposed because of speech, is subject to the same constitutional limitations as a ban.

12. The defamation cases are beside the point. This wasn't a defamation case, and no one was defamed. Plaintiff claimed the right to be free from religious speech addressing a matter of public concern in the public square because plaintiff deemed the speech objectionable. If the First Amendment doesn't protect that, it seems to have developed a huge hole.

Contrary to many commenters here, what strikes me as curious about this case is that so many people who ought to know better, starting with the judge, evidently disagree that basic First Amendment principles don't doom this case. I don't get it.

Peter, do I understand correctly that Britain has also eliminated the jury trial in certain classes of cases? Or was that just a Blair pipe dream?

There was a Bill before Parliament in 2006 to abolish jury trials for some complex fraud cases, where it was asserted common folk simply could not grasp the fiscal and legal matters before the Court.

There was, as best I recall, a case prior where the jury told the Judge, after the case was done, that they had got their verdicts hopelessly muddled and convicted when they realised later they should have acquited and vice versa.

So maybe there was a point, but nonetheless the Bill failed to pass into Law.

Then again we do not have some pretty strident anti-terrorist legislation that gives huge powers of detention to the Executive, with or without a judicial trial; so you could argue - many do - that the writ of law to imprison bypasses the jury when the Government wishes it to.

If the Government wishes not to prosecute terrorist suspects because it does not want to compromise the sources of evidence, then it can impose a Control Order - curfews of up to 18 hours per day [though that limit recently challenged in the Courts] - and if Courts subsequently overturn these executive actions, then the person can immediately be subjected to an exact same Control Order on the exact same undisclosed evidence.

We also recently enacted the Mental Capacity Act 2005, which allows deprivation of liberty of persons assessed as lacking mental capacity to make decision when it is considered in their 'best interest'.

Someone may be deprived of liberty in a hospital or a care home for up to 12 months - renewable - just on application to a local government Council and that body can authorise the detention - must do so in fact if the necessary assessments indicate it is necessary to prevent harm to the person or others - as an administrative order.

There is no appeal process, other than to the Court of Protection.

So don't lose your marbles in the UK if you don't want to lose your liberty too!

What's the similarity? IIRC, in that case, Flynt ran a satirical piece and it was found to be non-libellous on the basis that the statements attributed to Falwell were so plainly absurd that no one could possibly think it was intended to be anything other than satire. I thought this case involved the question of damages for emotional distress from the exercise of an asserted speech right in a public forum.

Falwell sued for libel, invasion of privacy, and infliction of emotional distress.

The district court shot down the invasion of privacy claim, and the jury found for Flynt (for the reasons you cite) on the libel claim. But they found for Falwell on the "infliction of emotional distress" charge, and that is the verdict that ended up being overturned by the supreme court.

So it seems to me that there's enormous similarity between the two situations.

Here's the infamous---- but I'm not a lawyer. I always thought that the first amendment protected you when the GOVERNMENT tried to control or police your speech.

I don't see where the government had tried to control Phelps at all.

It seems that the issue is that the plaintiff believes that he suffered emotional harm from the behavior of Phelps and is suing for that. The job of the court is to determine if that harm occurred and how to compensate them for it if the harm did occur.

Neither the feds or state told Phelps he couldn't say what he's been saying, so I don't see any constitutional violation at all ---- but I ain't a lawyer so I guess that I can't just twist it enough for it be a constitutional issue

Phelps annoys me, but I'm also bothered by the suggestion that "fighting words" is now construed to include the possibility of violence. If that's the case, can't I now claim any speech that offends me to be fighting words?

I find Phelps behavior grotesque, but the entire point of the first amendment was to protect outlying speech--something McCain, Feingold and a whole bunch of idiots in Washington fail to understand or respect. The first amendment wasn't intended to protect agreeable free speech, but disagreeable free speech.

The notion that someone could be fined for "offensive speech" is contradictory to our values as Americans. This isn't being an absolutist, but a realist. It may sound trite, but this is a very dangerous slippery slope. (What if the protesters silently marched. Is that next? What if they held a meeting a mile away and ranted about what incoherent crap they rant about, would that be next?)

Having said that, there are remedies that fall short of free speech issues that can address this, such as disturbing-the-peace laws. I can't run up and down my street screaming at three in the morning, even if it's ranting about taxes.

In the end, I'm still willing to let Phelps off to preserve a broader interpretation of the constitution.

"I feel nothing over the death of merceneries. They aren't in Iraq because of orders, or because they are there trying to help the people make Iraq a better place. They are there to wage war for profit. Screw them." -- Markos "DailyKos" Zuniga

(and before lefties get their underpants in a bunch, YES there are plenty of equally hateful right-wing comments)

My question is: why, legally speaking, would Phelps be liable for his behavior, but Zuniga not be? Or IS Zuniga liable and the relatives of the people he attacked just haven't bothered with it?

To make clear, and constitutional lawyers--I stress constitutional--may correct me if I'm wrong, but I believe "fighting words" are those words which lead the recipient to believe their is an immediate and direct threat of harm to themselves. It does not mean it angers them and makes them want to strike back.

(If someone at the funeral had popped Phelps in the mouth, that person would be charged with assault. A mitigating factor would be Phelps speech, but the speech itself would not fall under direct pervue of the court.)

The government is the entity taking his money and giving it to someone else. That would be the "control" in question.

To use an extreme example -- suppose a Catholic sued a Jew for denying that Jesus is the son of God, and the courts awarded a $10 million judgment against the Jewish defendant for offending the plaintiff. Is a nation in which that's possible one with true freedom of religion, or would it be more accurate to say that Jews aren't free to express their faith in that country?

There's little real difference, to the person wishing to commit a given act, between allowing people to sue him for doing it, and making doing it a criminal act punishable by a fine. Indeed, the latter would actually be LESS dangerous to the person in question, since the odds of there being a vindictive private citizen out there greatly exceed the odds of there being a vindictive prosecutor -- and, of course, criminal charges have a higher burden of proof.

To use an extreme example -- suppose a Catholic sued a Jew for denying that Jesus is the son of God, and the courts awarded a $10 million judgment against the Jewish defendant for offending the plaintiff.

Except that the actual parallel would be the Jew denying that Jesus is the son of God by standing outside the Catholic's church, harassing individual members of the congregation on their way in and drowning out the service so that the Catholic and his congregation were unable to worship.

Is this correct?"Fighting words doctrine.The First Amendment doctrine that holds that certain utterances are not constitutionally protected as free speech if they are inherently likely to provoke a violent response from the audience. N.A.A.C.P. v. Clairborne Hardware Co., Miss., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, having direct tendency to cause acts of violence by the persons to whom, individually, remark is addressed. The test is what persons of common intelligence would understand to be words likely to cause an average addressee to fight. City of Seattle v. Camby, 104 Wash.2d 49, 701 P.2d 499, 500.

The "freedom of speech" protected by the Constitution is not absolute at all times and under all circumstances and there are well-defined and narrowly limited classes of speech, the prevention and punishment of which does not raise any constitutional problem, including the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

Except that the actual parallel would be the Jew denying that Jesus is the son of God by standing outside the Catholic's church, harassing individual members of the congregation on their way in and drowning out the service so that the Catholic and his congregation were unable to worship.

First of all, Jennifer, I wasn't drawing a parallel to Phelps' behavior. I was explaining how lawsuits can still violate the First Amendment even though a private system is initiating them.

Secondly, your parallel is obviously wrong. Phelps' protesters weren't in front of the church; they were a thousand feet away. The plaintiff, by his own admission, had to look up the protest on Google to find out what it had been about!

Who in their right minds has the time of day for morons who can't manage to swing their tiny little minds from Phelps desecrating the funeral of a US Marine hero to their being able to say anything they want.

It's pretty straight forward. If you feel an irresistible urge to desecrate the funeral service for a US Marine hero, come on down, but don't forget to bring your checkbook and your health insurance id card.

You're going to need them both by the time the decent citizens of America are through with you.

Pogo, I still don't agree with you. I read the quote from you posting as still requiring an inevitable imminent threat.

That violence did not, in fact, happen means by very definition that the words used were not "fighting words". (Though they are no doubt words that make you want to sock Phelps in the jaw, even long after the fact.)

In other words, If fighting words don't result in fighting, are they fighting words? (My point is, maybe, but we better be damn careful going there.)

Revenent brings up a more poignant issue as to whether the protesters actually caused immediate disruptive offense, offense after the fact or offense only in hindsight.

Geez...doesn't this group of legal eagles know the difference between a crime and a tort?

The First Amendment guarantees that Congress will not make a criminal offence out of the mere exercise of free speech.

The Constitution, however, makes no promise that dumbasses like Phelps will say anything without being held responsible for the consequences of that expression and their effects on others, notably private parties.

It's not illegal for me to ogle at my coworker's breasts. But if I do it enough over time, and it causes her damage, even damage which is hard to define and quantify, such as emotional distress, then I could be held responsible for causing that.

Maybe if the State had brought suit, it would be a different story. But these are two private individuals.

Pogo, we'll have to agree to disagree. I still maintain that absent any actual violence or behavior that indicates violence was imminent, your interpretation falls short.

(However, I do agree that Phelps's may suffer violent consequences as the result of his actions. I remember the Skokie, IL case very well. I was a teenager and for the first time gave serious thought to the meaning of the first amendment. At first, I supported the city for the reasons you have cited. I eventually changed my mind for the reasons I have stated. I did say at the time, however, that if any marchers [of the NSPA] got shot, they shouldn't be surprised. I wasn't endorsing violence, but being realistic that it was a very real possibility--I did wonder if the NSPA was planning on this and for that reason alone hoped violence wouldn't happen.)

The First Amendment guarantees that Congress will not make a criminal offence out of the mere exercise of free speech.

So your claim, then, is that if California passed a law allowing people to sue anyone who denied that global warming is happening or that gays have a right to marry, or if Texas passed a law allowing people to sue anyone who denied the divinity of Christ or spoke positively of Hillary Clinton... that there would be no first amendment implications, because it wouldn't involve a criminal law passed by Congress?

That's a fascinating viewpoint, and it may very well have been true two centuries ago. But it is simply false today.

A legislature simply recognizing a right for private individuals to sue over something -- a right that ALREADY EXISTS before the law, does not criminalize the act.

If someone else thinks they've been damaged as a result, they can sue. That is not at all the same thing as criminalizing speech.

You can burn a flag. That's not a crime. But if you burn MY flag, and my house catches fire as a result, then you're liable for damages. Even if you haven't committed a crime. For example, you burn YOUR flag, but as a result of your carelessness, my house catches fire. I can sue to be made whole.

That doesn't make you a criminal, though you may be an ass.

Like I said - can't anyone here tell the difference between a crime and a tort?

Thank you for your thoughtful response to my earlier query. For the record, I'm coming from a pretty radical libertarian perspective, so I'm all about free speech in general, as I assume are most of the others who have nevertheless expressed the belief that Phelps' speech is not protected. Moreover, as an undergraduate I sometimes went with others to the local abortion clinic and tried to (calmly) dissuade and suggest alternatives to women and couples on their way in for an abortion, so I'm sensitive to the slippery slopes involved.

Concerning the non-aggression principle, which is at the heart of libertarianism: It seems to me that spouting outrageous and insulting things at people who don't want to hear it and can't avoid your injurious words can be a form of aggression every bit as coercive as physical aggression. In fact, I'm willing to bet that the mom and dad of that dead soldier would have rather been punched in the gut and slapped in the face rather than be forced to listen to Phelps' garbage during their son's funeral.

I'll have to defer to your seemingly superior knowledge of First Amendment jurisprudence, except that (after a Google search) your description of the "fighting words" doctrine does not seem complete. Here's the language from the seminal case of Chaplinsky v. New Hampshire 315 U.S. 568 (1942):

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

While the doctrine has been watered down over the years (and I agree that interpeting it too loosely would be highly dangerous to freedom of speech), it's not a dead letter.

Whatever the current First Amendment jurisprudence might be, I think justice requires that it be modified and interpreted so that people are not forced to be subjected to the kind of abuse leveled by Phelps et al. against this family. It seems that the principle that people should not be forced to listen to abhorrent speech could be adhered to and developed without necessarily sliding down any slippery slopes.

If a racist or homophobic bigot stakes out a place in the town square to spew his garbage, he has a right to do that. (Sensible laws will limit the volume of his bullhorn.) People can move quickly on and aren't forced to listen. The bigot doesn't have the right to follow people and force them to listen to his speech. A pervert doesn't have the right to follow a woman down the street and tell her all the things he'd like to do to her, does he? In principle, if I tell someone to stop talking to me personally, they should stop talking to me. Of course, hopefully reason will prevail in setting penalties, if any, for minor infractions. Phelps conduct was not a minor infraction.

In the same way, it doesn't matter if Phelps and his gang "just happened" to show up and stake out a place at the cemetery an hour before the funeral began. A common sense investigation of the circumstances clearly shows that their intent and reason for showing up was to be heard by those in attendance at the funeral. The funeral attendees were then a captive audience. In such circumstances, I don't think it was necessary for any of the mourners to walk over to the protesters and ask them to be quiet in order to infer the unwillingness of the mourners to hear the protesters speech.

Further qualifications are necessary. E.g., the bigot in the town square spouting racist or homophobic speech has no standing to tell a counter-demonstrator or speaker to stop talking to him.

A legislature simply recognizing a right for private individuals to sue over something -- a right that ALREADY EXISTS before the law, does not criminalize the act.

Pay attention, Jason. I'm not talking about criminalizing an act. I'm talking about passing a law -- you know that there are laws other than criminal law, right? -- that allows people to sue for things they are not presently allowed to sue for in our courts. Such as, in my example, denying the divinity of Christ. In such a case, the jury would have no choice but to find for the plaintiff in any case in which the defendant had denied Christ's divinity. The courts would have no grounds for overturning the verdict, since (according to you) there's no first amendment violation.

So despite the fact that this would have the effect of the government making the expression of non-Christian religious sentiment financially impossible, your claim is that there's no violation of the first amendment because nobody's acutally being threatened with jail time.

Revenant said: "Secondly, your parallel is obviously wrong. Phelps' protesters weren't in front of the church; they were a thousand feet away. The plaintiff, by his own admission, had to look up the protest on Google to find out what it had been about!"

This is certainly relevant to the merits of this particular case and the argument I've been making! It certainly argues for much lower damages than what were awarded.

Jason, let me walk you through this. I'm not a lawyer, but hopefully this is pretty much right:

(1): Congress may not pass laws restricting free speech (you added the word "criminal"; it isn't in the Constitution).

(2): Since the states are now held to be bound by the restrictions of the Constitution with regards to what laws they may pass (I don't agree with this but it is still settled as a matter of law), this means that the states are ALSO forbidden from passing laws restricting free speech.

(3): With the exception of the Supreme Court itself, the entire court system is established by laws passed either by Congress or by the states.

(4): A law establishing an entity with the power to restrict free speech is a law restricting free speech. E.g., Congress can't pass a law establishing a Bureau of Censorship and then plead innocence on the First Amendment violations by saying "the Bureau is doing the censoring -- not us".

(5): Since the courts are established by Congress and the states, and since institutions established by Congress and the states are limited by the restrictions placed on Congress and the states, it follows that the courts are ALSO forbidden from restricting free speech.

(6): Any activity held, by the courts, to be a tort, is an activity restricted by the courts.

(7): Ergo free speech cannot be grounds for a tort. Only unprotected speech can be.

The denial of Christ parallel is absurd. Who's going to be able to show he or she was damaged by the denial of Christ? Try again.

It isn't a "parallel", Jason. It is the implication of your claim that only criminal laws violate the First Amendment. If only criminal laws violate the first amendment then it is completely constitutional to pass civil laws making any speech Congress disapproves of grounds for a lawsuit.

Joe,1) I don't see a reference to imminent anywhere, just "likely to".

2) You seem to be suggesting that the victim must be fearing that the speaker is going to be violent. Not at all. All the references cited here thus far have been solely about the effect of inflammatory speech provoking a violent response by the listener.

Thanks to Pogo for getting the present legal definition of fighting words. Joe was wrong, they are not words that are only confined to those that would make someone fight in self-defense of imminent peril. It covers a range of verbal attacks on a person or group in close physical contact that are lewd and obscene, the profane, the libelous, and the insulting or "fighting words" which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

People understand "Lines" in society that cannot be crossed without provoking violence, major public disruption. America needs to enforce those Lines in order to function as a society - otherwise - as Pogo said, clandestine physical punishment means outside the legal process will be used to restore the domestic tranquility.

Basically, in certain ways, the behavior in non-law abiding gangs is more civil than in the general public in many areas because violations of honor, insults to family don't happen because norms are enforced by likelihood of physical harm.

And we envy them somewhat - the Sopranos and the members of La Familia in Oklahoma City that the Phelps showed up to protest and fled immediately on learning the dead Army guy was a gang member - because they get the honor and respect that the law fails to protect ordinary citizens in according when people come and dishonor and disrespect their family.

A reason why the Phelps witches do not go to funerals and talk about the families involved deserving it when they fear a gang vendetta or it is in a ghetto setting where they feel little lawsuit money can be gained and there is a high risk of thugs maiming or killing them.

If you look at who the Phelps witches select, you notice they will cull out showing up at black family's funerals. Too risky.

The Phelps perversion of our liberties is actually quite similar to the sleazier of the Paparozzi, who operate like the Phelps. With full lawyer involvement - intruding on celebrity lives, insulting their children on camera - in the hopes of provoking a fight and a big payday.

This is a lawyer-enabled scam.

People that deliberately and aggressively go out seeking trouble. Doing all they can to provoke a understandable human reaction in their targets. Then with careful lawyer advice, wrap themselves in an absolutist construct of one "rights" element of the law to better persecute their victims for more publicity and a big payday.

It badly abuses the People and the Laws they create to make for a better, more just, and tranquil society...and the lawyers heavy involvement with the Phelps and Paparozzi ensure they remain free to conduct their scam on others.

If the legal system fails to protect from lawyer's scams like the Phelps (his daughters are the Bar lawyers who also retain other tort experts) - then rational people realize an alternative is that it all could end tomorrow with a few clandestine bullets lodged into Phelps people.

If the soldier family's verdict is overturned, IMO, a violent end of the Phelp's game becomes more likely.

Revenant - I didn't catch that they were that far away until you mentioned it and I read through a second time. I'm glad to hear that. That was not their original MO. It sounds like legislation has forced them to move farther back from the funerals themselves. And the article said the Google search led the father to the group itself and an essay they had posted specifically about this Marine. Not that the father had no idea what was going on until he googled.

I don't know that emotional distress can only be inflicted face to face. You're right that my parallel is off given the group's current restrictions.

I still maintain that the fact their speech is protected doesn't releive any liability they have when they choose to target specific individuals with their free speech. Just as it's not specifically illegal to speak the word "fire", the context matters. Do it in a crowded space and not only can you be liable, but you've crossed into criminal. Their speech may be protected, but given that they've chosen to intentionally inflict emotional distress on specific families, why shouldn't they be liable for that harm?

It's possible that I'm missing something. Because I have no idea what you're referring to when you say I'm talking about passing a law -- you know that there are laws other than criminal law, right? -- that allows people to sue for things they are not presently allowed to sue for in our courts. Is this completely hypothetical?

Joe: "In other words, If fighting words don't result in fighting, are they fighting words? (My point is, maybe, but we better be damn careful going there.)"

Well now we have a conundrum don't we.

Sort of like Trademark law. If a company doesn't protect their trademark a word like "Kleenex" can pass into common usage and no one has to bother saying "facial tissue" ever again. Even if they are talking about "Puffs".

So if "fighting words" don't result in violence because the persons those words are directed at don't react violently, then they are no longer "fighting words"?

So... if we don't react like Islamists and burn some stuff down when we are offended by cartoons, it doesn't matter if the average person would see the abusive language and insults as *justifying* violence, the fact that there is no violence means the words really weren't that bad after all.

I've thought for a while that we were losing something by enforcing an ethos of non-violence. But what I thought we were losing was a native understanding by people of where the line of good behavior was. (ie., that guy Buzz Aldrin punched probably never imagined in his wildest dreams that his behavior was bad enough someone might clock him.)

I didn't realize that by not punching people in the face more often, immediately answering insult, that we were actually losing Rights!

No, I'm not. I'm simply objecting to your claim that there IS no Constitutional protection of speech, except from CRIMINAL law. You keep trying to drag the topic back to Phelps again. Phelps is irrelevant. I'm addressing your wrongheaded reading of the law.

Their speech may be protected, but given that they've chosen to intentionally inflict emotional distress on specific families, why shouldn't they be liable for that harm?

I confess that I'm not fully versed in exactly what the hell Phelps thinks he's accomplishing with these protests, but my impression from the coverage so far has been that inflicting emotional distress on the families of the specific people they're protesting isn't their purpose. They're attacking the military as an institution, and blaming the deaths of soldiers on the will of God. They have said that the sexual orientations of the specific soldiers whose funerals they protest at aren't relevant to their cause. I'm sure those specific families feel emotionally shattered by what he's doing. I'm sure the families of the contractors killed in Iraq felt emotionally shattered by DailyKos' "screw them" response to their deaths, too. But is that really grounds for a suit?

Let's say that Jesse Jackson got a bug up his ass about Starbucks not having enough black employees. He decides to park himself in front of the Starbucks at 517 Elm Street in Topeka, Kansas, with a bunch of angry black men waving signs that say "Starbucks = racist" and "Stop StarbucKKKs". Obviously this is going to inflict emotional harm on the people working in the Starbucks store at 517 Elm Street. Do they have grounds to sue Jesse Jackson? I'm pretty sure they don't.

Thus, wars and the deaths caused by wars are God's punishment on the nation for tolerating homosexuality.

The purpose may not be specific and personal but an average person has to know that he or she is inflicting enormous emotional distress on specific individuals and have decided to do it anyway.

Rev, I think your Starbucks analogy lacks in that Phelps protests are personally directed at emotionally vulnerable people. If I work at Starbucks I might be upset and angry at the protestors you suggest, but it really doesn't compare to someone wishing harm on my child. How about if Jesse decided that tobacco companies were racist and smokers supported that and so he set up outside a cancer clinic and shouted to lung cancer victims that they are racist and deserved to die?

So his target is the tobacco companies and not, actually, those dying from lung cancer.

How about if Jesse decided that tobacco companies were racist and smokers supported that and so he set up outside a cancer clinic and shouted to lung cancer victims that they are racist and deserved to die?

He'd probably be invited to give the keynote address at the 2008 Democratic National Convention. :)

I confess that I'm not fully versed in exactly what the hell Phelps thinks he's accomplishing with these protests, but my impression from the coverage so far has been that inflicting emotional distress on the families of the specific people they're protesting isn't their purpose.

Well, who the heck knows what goes on inside the minds of people like this. But, given that they manipulate their message depending on the families they are targeting - ie Marine signs for Marines, Army signs for Army - and given that they publish essays personally naming their victims (see pdf here, or html here) with quotes like God blessed you, Mr. and Mrs. Snyder, with a resource and his name wasMatthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD – PERIOD! You did JUST THE OPPOSITE – you raised him for the devil., I think they're hardpressed to claim they aren't targeting individuals. And, I don't think a reasonable person could believe that these targeted attacks wouldn't cause emotional distress.

As for your Starbucks example, I do see what you're saying. But as I said before, context matters. And I don't think it's unreasonable to leave it up to a jury to decide whether or not the context makes the actors liable for their actions.

Ugh, reading a little farther into their friendly little published work...

Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater....Then after all that they sent him to fight for the United States of Sodom, a filthycountry that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?

Revenent - but my impression from the coverage so far has been that inflicting emotional distress on the families of the specific people they're protesting isn't their purpose. They're attacking the military as an institution, and blaming the deaths of soldiers on the will of God.

Your impression is wrong, insofar as the Phelps crew has chosen not to attack this at the Pentagon, military bases, Congressional Armed Forces Oversight Committees - but targeting the defenseless families themselves.

But is that really grounds for a suit?

It shouldn't be, if the first time the Phelps tried it at a military funeral, family members had been legally allowed to beat the Phelps people to within an inch of their lives.

They have said that the sexual orientations of the specific soldiers whose funerals they protest at aren't relevant to their cause.

Then why have statements and placards to achieve the insinuating effect they employ - "SGT Joe Krendall is Dead Because God Hates Faggots."???

a bunch of angry black men waving signs that say "Starbucks = racist" and "Stop StarbucKKKs". Obviously this is going to inflict emotional harm on the people working in the Starbucks store at 517 Elm Street. Do they have grounds to sue Jesse Jackson? I'm pretty sure they don't.

Big difference between Phelps lawyers on a publicity/lawsuit scam attacking a sucession of ordinary American innocent families out to bury a dead hero of theirs - And Jesse and his multi millionaire professional race baiters and their legal-PR machine taking on a multi billion dolar company and their legal-PR team over employment policy.

Hey, the court ruled my way. Not yours. My reading of the law, thus far, is vindicated. You've got the burden of proof at this point.

I'm simply objecting to your claim that there IS no Constitutional protection of speech, except from CRIMINAL law.

Dude: What part of "unprotected speech" do you not understand? That's really the simplest counter to your claim. But to give you more of a target, I'll take it further:

I would hold that my argument is precisely correct - in that there is nothing in the Constitution that exempts anyone from being held liable for torts committed while they happen to be engaged in legal activity.

Look, dude. I have a constitutional right to own a gun. If I leave it in the car, knowing it's likely to be seen and stolen, and someone steals it, AND kills someone else, I don't get to raise my constitutional right to own a gun as a defense against liability in a wrongful death claim.

Well, I guess some people would be dumb enough to try, obviously. At which point, maybe I get to have grounds for an appeal due to incompetent counsel.

Gun ownership is protected. But I do take some risk to assets in the event of a claim - IF someone can show legitimate damages as a proximate cause of that exercise of gun ownership.

I'll take it still further - but only to illustrate the sheer drooling stupidity of liberals:

How is it that holding Phelps liable for damages caused due to severe emotional distress, deliberately inflicted, cause for grave concern over our eroding first amendment freedoms. But yet none of those goons has a problem with prosecuting abortion clinic protesters under the RICO act?

You make a good point about them customizing their message for the individual funerals.

I don't know; maybe this sort of thing really isn't protected by the law, but I still feel like it ought to be. I'm suspicious of any jury award that is based on the feelings of the defendant. It just seems so open to abuse, and the court system gets abused so much as it is. How hard would it be for a lawyer to shop around for a venue where jurors were likely to be sympathetic to the particular "emotional trauma" he wants to sue over?

I'm also bothered by the fact that the plaintiff's lawyer in this case promoted this to the jury as an opportunity to silence Fred Phelps. I personally hope the man gets rectal cancer and dies screaming (can I be sued for that?), but I'm bothered by anyone who views the courts as an instrument for silencing people he dislikes.

Hey, the court ruled my way. Not yours. My reading of the law, thus far, is vindicated. You've got the burden of proof at this point.

Jason, you're not paying attention and you're starting to bore me, but I'll give this one last try.

You said this:

The First Amendment guarantees that Congress will not make a criminal offence out of the mere exercise of free speech.

That is what I quoted. That is what I was responding to -- your belief that the First Amendment only forbids making speech a criminal offense. That is why all of my follow-ups to you have focused on that ONE issue without either defending or attacking the Phelps verdict. So get this through your pointy little head, because I'm tired of explaining it to you: regardless of whether or not the Phelps verdict is correct, YOU are wrong about the First Amendment.

That is the entire point I was making when I responded to you original post. That is why I neither quoted nor addressed your opinions on the Phelps trial. I don't care what your opinion on the Phelps trial is; I'm busy discussing it with people whose opinions on it are actually interesting to me. I was just correcting the mistake you made about the First Amendment -- a mistake which, contrary to your belief, was neither supported by nor vindicated by the Phelps trial.

The lawsuit was to remedy the damages due to intentionally inflicted emotional distress.

So if Al Gore gives a speech saying sea levels will rise and drown us, thus causing my children emotional distress, can I sue?

If Al Gore's speech makes me so mad, I want to punch him, has he incited violence?

If I go to the funeral of a known terrorist with signs saying his religion is dumb, am I within my rights? What if I'm a mile away? Two miles? A thousand?

Don't dismiss my arguments as nonsense since that's exactly the judicial environment many of you are asking for. Free speech now becomes the whim of the court. (Unfortunately, to an unfortunate extent it already has been. In addition to the travesty of McCain-Feingold, public universities are creating and enforcing "hate speech" rules. On the other end of the spectrum are people demanding that anti-religious speech be censored. I've no doubt that were the ultra-right in charge of universities, they would enforce those rules. [Bob Jones University and to a lesser extent BYU already do.])

I think the right principle is that people don't have a right to coerce you into listening to speech that you find offensive. Speeches by Al Gore on the TV or rants by some lunatic in the town square that cause you or your children emotional distress don't fall into that category, because you can easily avoid that speech. But if you and your family are having a picnic in a public park somebody doesn't have the right to come up to the perimeter of your picnic site and start delivering an intrusive speech about global warming or the evils of homosexuality or anything else without your permission. You have the right to chase him off or have a police officer chase him off. The family of this dead soldier had the right to chase off Phelps or have a police officer chase him off from their son's funeral, to chase him not just 1000 feet away but clean out of sight and out of hearing. (Phelps could say anything he wanted from a mile away, so long as it wasn't libelous.) If that could have been done in the first place there would be no need for the courts to get involved and to determine damages based on the feelings of the plaintiff.

As an active duty soldier, I attended the funerals of 3 fallen soldiers that these sub-humans "protested" at. It was the vilest thing I have ever seen. The damage they do is very real and it is gut retching to see the families of the fallen forced to pass in front of these evil people. The signs they carry could by any reasonable standard, be called pornographic. The fact that children are made to protest should be prosecuted as "child endangerment". This is not some theoretical practice of free speech, this is an attack on the fallen soldiers’ families when the families are at their most vulnerable. This sick man is a megalomaniac of the first rate. So.... y’all will forgive me if I think that this judgment was just and too long in coming. Just visit Fred’s website and I think you will agree that he needs to feel the heat of the courts that he has used to fund his lifestyle. I must admit that I would rejoice at any tragedy that should visit Fred Phelps

Phelps could say anything he wanted from a mile away, so long as it wasn't libelous.

Could he? Part of the award was for invasion of privacy, but the rest -- the "emotional distress" part -- seems to have been awarded for emotional distress that was suffered from reading about the protest online, after the protest was over. How would that have been solved by moving the protest a mile away? The dead Marine's father still might have found out about it and looked it up on Google.

There's also the question of why Phelps should have known that "a mile away" was the proper distance. The state had passed a law establishing "300 feet" as the proper distance; Phelps appears to have been over three times that distance away. Isn't it a bit odd to establish a limit of "no closer than 300 feet" and then uphold a finding that 1000 feet was too close?

Maybe I'm missing something about the law or the facts of the case, but it sounds to me like Phelps made a good-faith effort to do what the law required of him and is winding up in court anyway. That's not how the system is supposed to work, is it? Then again, it couldn't be happening to a nicer guy. :p

I still haven't actually read the article (and am not about to start now -- plus we both know that media articles have a penchant for screwing up the details of lawsuits anyway). To the extent that any part of the emotional distress award was based on the father's reading about it online afterwards, I would think it would have to be based on the "hook" of it supplementing and aggravating the distress caused by whatever personal experience the father had of the protest itself. If the protest was held a mile away and the father read about it online, I don't think there would be any basis whatsoever for damages, based on my recollection from law school about the elements needed to establish infliction of emotional distress, which include proximity. I don't remember anything from law school about the tort of invasion of privacy, but in any event I think a "protest" from a mile away would clearly be protected by the First Amendment.

If the law indeed established a 300 ft buffer, seems to me that would constitute a pretty strong though not determinative argument for the defense, because to be tortious, infliction of emotional distress has to be either negligent or intentional, and the statute establishing a 300 ft. buffer would constitute evidence for what a reasonable standard of care required, upon which the defendant likely relied. But since I think the Marine's family and the police would have been justified in chasing Phelps clean out of sight and out of hearing (because his only reason for being within range of sight or hearing on that day was obviously to coercively communicate hateful things to the Marine's family, which he had no right to do), Phelps risked liability by coming within that range and imposing his presence on the family. It would have been better if the legislature had not specified an arbitrary buffer zone of so-many-feet at all.

Keep in mind that the above is based partly on my incomplete knowledge of the law in this area and partly on what it seems to me the law should be.

"Well I certainly can't be bothered to read your opinion of a case you're that disinterested in the facts of."

I wasn't trying to be a smart ass. The discussion, as I gathered from the original post and the subsequent comments, was more about principles than the facts of this particular case, and that's what I was primarily engaging with and most interested in. From reading the original post and the comments I got the impression that I understood the facts of the case that were most relevant to the discussion of the underlying principles. Your own tentative descriptions of the facts acknowledges that we can't know all the relevant facts of the case just from reading a media article. I did go to the trouble of reading the article after posting my last comment. I will say that for some reason I was imagining a ceremony being conducted at a cemetary (where mourners would be coercively subjected to seeing and hearing the protestors throughout the ceremony), and the fact that it was actually being conducted inside a church (where most funerals are) does affect the application of the principles. (Note that the article doesn't say whether the protestors also showed up at the burial. I assume not.) But what I've said about the principles is independent of whatever the particular facts of this case might have been.

What if I were attending/holding an orchestra concert on the village green. While the concert was underway and, indeed this was the summer's big cultural event, a heavy metal band set up across the street, amps the size of refrigerators, and let loose. the orchestra was drowned out and the concert distrupted. The metal band refused to move or cease.

More to the issue, what if I was attending a church service and protestors hard against my church's doctrines interferred with the quiet dignity of my service and yet while not on church property, were so loud and disruptive as to preclude my religious observance?

Please tell me, aside from free speech, where does my space begin -noise wise - and where does someone else's end? Then tell me why a funeral isn't a religious service as it was in this case,and why my free exercise of religion wasn't hampered...not by the state but by individuals.

Richard Dolan (and anyone else who has something to offer in regards to this):

Thanks for your response to John K. Some of your points also addressed my posts in this thread. But, I still have a question:

You said:

"The speech at issue occurred in the public square. Whatever reasonable expectations of privacy may exist in the public square (it's hard to imagine what they might be), they don't justify the State in attempting to ban speech in the public square. "

... and:

"The defamation cases are beside the point. This wasn't a defamation case, and no one was defamed. Plaintiff claimed the right to be free from religious speech addressing a matter of public concern in the public square because plaintiff deemed the speech objectionable. If the First Amendment doesn't protect that, it seems to have developed a huge hole."

But, the jury did determine that privacy was invaded and defamation occurred. Was your statement saying that the jury was wrong in doing so?

And in a broader sense, where does the rights of the person excercising Free Speech end and the rights of the object of that Free Speech begin? Given that that's a broad question, it's okay to restrict the answer to the specifics of this case. Your points are valid and very good - if Phelps was indeed some distance away, I'm hard pressed to explain exactly how this was an invasion of privacy - but again, the jury decided that the criteria for that violation was met. Was the jury wrong? Or is there something there that I'm missing?

Basically, what I've been trying to say in all these posts is: What about the Snyder family's rights in all this? A jury did decide that the violations occurred, so the only valid counter argument in my mind is that the jury was wrong in making their decision. Were they?

If you had ready the article and followed the discussion so far, you'd know that the protesters don't seem to have "drowned out the service" and weren't "across the street". They were, according to the article, a thousand feet away.

Where does "your space" begin? I'm not sure, but surely it doesn't begin a football field's length away from you.

Stewie: Did you hear that Meg? Guys can marry other guys now. So...this is awkward, but I mean, if they can do that, that is pretty much it for you, isn't it? I mean you as well pack it in. Game over(Family Guy 2007)

To further establish that I am not an incurious sort of person, I spent well over an hour at Westboro Baptist Church's official website, godhatesfags.com, about six months ago after reading some article or other about them. Pretty sick and demented stuff, but kind of surreal cause most of this clan are pretty intelligent lawyers and the FAQ on the website is not without logic on its way to its damnable and obviously wrong conclusions. Satan himself is generally conceived of as intelligent rather than stupid, and I was struck by the impression that the screeds on this website are possibly, in their perversion and hate, the most satanic things I've ever read.

Also quite eye-opening is the book about Fred Phelps, written by a former reporter at the Topeka Capital-Journal but never published apparently out of fear of lawsuits from Fred Phelps. The book is appropriately titled Addicted to Hate and is posted in its entirety at blank.org/addict. According to two of Phelps' adult sons who left the fold, Phelps regularly beat the holy hell out of all of his 13 kids and his wife. He was permanently disbarred from practicing law because of frivolous and malicious litigation and because he was found to have deliberately lied to the court. It makes for some fascinating and disturbing reading. It's in some respects kind of uplifting because it demonstrates that at least some of his family has been able to break the cycle of hate, move beyond their hellish upbringing, and apparently become very decent Christian parents.

Also surreal is the website of the law firm founded by Phelps, with its bios of the attorney-progeny of Phelps who mainly staff it. The website, at phelpschartered.com/home.htm, comes across as professional and business-like, with nary a word about the outrageous activities in which its members are engaged.